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Above the Fold

SCOTUS Surprise

Jun 28, 2012

By Robert Reich

Today a majority of the Court upheld the constitutionality of the Affordable Care Act, otherwise known as Obamacare in recognition of its importance as a key initiative of the Obama administration. The big surprise, for many, was the vote by the Chief Justice of the Court, John Roberts, to join with the Court’s four liberals.

Roberts’ decision is not without precedent. Seventy-five years ago, another Justice Roberts – no relation to the current Chief Justice – made a similar switch. Justice Owen Roberts had voted with the Court’s conservative majority in a host of 5-4 decisions invalidating New Deal legislation, but in March of 1937 he suddenly switched sides and began joining with the Court’s four liberals. In popular lore, Roberts’ switch saved the Court – not only from Franklin D. Roosevelt’s threat to pack it with justices more amenable to the New Deal but, more importantly, from the public’s increasing perception of the Court as a partisan, political branch of government.

Chief Justice John Roberts isn’t related to his namesake but the current Roberts’ move today marks a close parallel. By joining with the Court’s four liberals who have been in the minority in many important cases – including the 2010 decision, Citizen’s United vs. Federal Election Commission, which struck down constraints on corporate political spending as being in violation of the Constitution’s First Amendment guaranteeing freedom of speech – the current Justice Roberts may have, like his earlier namesake, saved the Court from a growing reputation for political partisanship.

The Supremes Rule: Why You Have to Love Lawyers and Politicians

Jun 28, 2012• 2

By Michael Millenson

Like the hero in an old-time movie, Chief Justice John Roberts metaphorically untied Obamacare from the railroad tracks and, with four of his colleagues, pulled it away from the onrushing destructive force of his right-wing colleagues in the nick of time. In doing so he also saved President Obama from political disaster.

Alas, just like in the movies, the villains will soon be back.

While the next five months will determine whether the Court ruling upholding health reform was a victory or just a reprieve, the president has been plucked from the perils of a politically ruinous headline: “Signature achievement of constitutional lawyer president declared unconstitutional.”

In doing so, the Court showed why Americans hate the other guy’s lawyer and love theirs. Roberts embraced his inner reactionary by ruling that the individual mandate did not meet the requirements of the Commerce Clause — even though virtually all respected conservative jurists believe it does, and the conservative Heritage Foundation clearly believed it did when proposing the idea under a Republican president.

However, the Court avoided what would look like a political decision overturning the entire law by ruling that the penalty for not buying health insurance was a constitutionally permitted tax. Which made the law constitutional. Game. Set. Match. (Well, unless you were a poor person counting on an expansion of Medicaid. But if you’re poor, you should be used to losing.)

Don’t you love clever lawyers? At least when they’re on your side?

What The SCOTUS Ruling Means For Healthcare

Jun 28, 2012• 3

By Douglas Holtz-Eakin

The Supreme Court has upheld the Affordable Care Act (ACA), a frustrating situation in which conservatives won the policy battle, but lost the war over the Act. In particular, the Court held that Congress cannot use the Commerce clause to compel commerce. The individual mandate qua mandate is unconstitutional. However, the Congress has the right to impose taxes (if not punitive and excessive), which permits the Obama administration to add a tax on millions of uninsured Americans in addition to the ACA’s already-massive tax burden on the middle class.

The Court ruled that a Medicaid expansion could be an unconstitutional federal coercion of the states, but this expansion does not have a penalty large enough to pass that threshold. Interestingly, the Court opened up the possibility that governors could refuse the Medicaid expansion. Those same individuals would then be eligible for subsidies in the exchanges. If all the governors refused the expansion, and if individuals take up subsidized insurance the federal cost heads even farther north.

In a bit of a pyrrhic victory, the Forum’s amicus briefs, signed by over 200 economists, were cited twice in the Court’s dissenting opinion. (See my amicus brief.)

The field of play now shifts from a legal battle to a policy debate. In addition to the Court’s endorsement of the policy foundations of the challenge to the ACA, the fundamental policy flaws remain.

The ACA remains a damaging, anti-growth vehicle for taxation. The so-called Medicare surtax increases marginal tax rates on the return to saving, investment, and innovation. The medical device tax will hurt innovation and cost jobs. A bill to repeal it is gathering dust in the Senate. Also, the insurers fee – the “premium tax” – will roil insurance markets, disrupt patient-provider relationships, and the vast majority of the burden will fall on the middle class.

Heritage & Roberts decree, all the world be taxed

Jun 28, 2012• 6

By Matthew Holt

The Supreme Court’s decision upholding the ACA is deliciously ironic. The “individual mandate”–an idea promoted for everyone in the 90s and for Massachusettians (?) in the 2000s by the arm of the Republican party known as the Heritage Foundation–was found to be legal. But not as a mandate, instead as a tax.

Put aside for a minute the dreadful political contortions required to get this quasi-universal health insurance bill past Congress in the first place. Put aside the fact that the supposedly non-political Supreme Court hands down decisions time after time that are a pure reflection of the exceedingly public extreme political views of its justices. Put aside for a minute the fact that the ACA has undeniably kickstarted a round of changes in the health care delivery and insurance system that at least has the potential to lower costs and improve care, and that the luncay of politics meant we nearly lost that momentum.

Instead focus on what the Supremes have done. They’ve cut through decades of rhetoric about how we pay for health insurance and clarified it thus: we pay for health care via taxes–whether they are private taxes on employers and employees (and now individuals) or public ones on citizens.

Want to Revolutionize Healthcare? Enable Physicians, Don’t Replace Them

Jun 27, 2012• 13

By David Shaywitz, MD

The reality of today’s funding environment for digital health entrepreneurs is that it’s traditional tech investors who have the lion’s share of the money, while most long-time healthcare investors are on the ropes, contending with fleeing LPs and at least the perception of disappointing returns.

While it’s great news that some tech funds seem interested in dipping their toes into the healthcare space, it’s concerning that the investors with the most resources are not necessarily the ones who understand healthcare the best.

Tech investors, in general, are not always comfortable with physicians, and seem much more at home with engineers and developers. These investors also tend to gravitate to businesses selling directly to consumers rather than dealing with the sordid complexities of our current healthcare system.

Many tech investors are also — understandably — drawn to the power of data, and the possibility of analytics, a sensible affinity but one that at times can translate into an excessively reductive view of medicine that fails to capture the maddening but very real ambiguity of medical science, and especially of clinical practice.

Finally, Quality We Really Care About

Jun 27, 2012• 15

By FARAZ AHMAD and THOMAS TSANG

Patient-centered care and patient engagement have become central to the vision of a high value health delivery system. The delivery system is evolving from a fee-for-service transactional payment model to a value-based purchasing model using outcome data and quality improvement and attainment. The Centers of Medicare and Medicaid Services (CMS) and private payers have spurred delivery redesign of networks that focuses on a set of clinical quality measures and patient care experiences along with efficiency measures.

However, the questions we ultimately really care are: “Did I get better? Am I healthier?”

With the advent of Facebook, PatientsLikeMe® and Avado, consumers and patients are sharing their healthcare experiences openly with their support system and strangers with similar illnesses. Our delivery system has yet to leverage the power of patient/consumer reported data in feeding back to care deliverers in the quality improvement cycle.

Clinical quality measures have traditionally consisted of process or surrogate measures and centered on providers and hospitals. As we move toward a system based on value, the measurement system must shift as well. Part of this movement will be utilizing outcomes directly reported from patients and their caretakers and incorporating these outcomes into quality improvement initiatives and payment models. The widespread adoption of standardized and validated patient-reported outcomes measures (PROMs) would accelerate the development of a patient-centered health system. However, new standards; patient-friendly, digitally-enabled instruments; secure portals; and more research will be required to facilitate adoption.

ACOs and Antitrust: A Few Words of Caution

Jun 26, 2012• 7

By David Dranove

I am coauthoring (with Cory Capps) a chapter on healthcare antitrust for the forthcoming International Handbook of Antitrust Economics. As we finish our first draft, we were searching for a good way to tie everything together. We both thought of concluding by discussing antitrust and ACOs. Cory and I believe that the underappreciated (and often excruciatingly boring) topic of antitrust is fully interwoven with the story of ACOs. And even if the Supreme Court strikes down the ACA (note to readers of my prior blog – I was just kidding), ACOs may endure. So this is as good a time as any to explain the connections between antitrust and ACOs.

I first recognized this connection twenty years ago, when my colleague Steve Shortell was touting the growth of integrated delivery systems. Steve even offered a universal health insurance proposal (which several states explored) built around competing IDSs. In Steve’s world, an IDS would consist of several hospitals and hundreds of physicians. I argued with Steve that economic theory provided little support for massive vertical integration (and theory is still not all that kind to the idea.) I granted Steve that if integration made theoretical sense, integration would be all well and good for Chicago, where there might be four or five competing IDS. But what about Milwaukee, Cleveland, or any number of other midsize metropolitan areas? They would do well to have two or three IDS. Indeed, even with a legislative mandate to form IDS, consolidation has left these and other midsize markets with just two or three health systems. Smaller metro areas might have only had one IDS.

Innovation is Key to Controlling Health Care Costs

Jun 26, 2012• 6

By Wendy Everett, ScD

In the battle over health care that lies ahead, how strongly will the public rally around the need for innovation in confronting health care costs? Does the public view innovation as relevant to the challenge in the first place?

These aren’t idle questions. The news that growth in overall national health care spending has been moderating has raised speculation that innovations in payment and health care delivery are already paying off, notwithstanding the unquestioned impact of the Great Recession.

Looking ahead, uncertainty over the fate of the Affordable Care Act and the likelihood of federal budget cuts yet to come has many fearing that innovations will be vulnerable. And it is not just federal spending that will be at risk. Hospitals and health plans will all be watching their margins carefully to assess how far and how fast they can keep making investments that support innovation (such as investments in healthcare IT, analytics and care coordination) but that may take months or years to generate a return.

All of which places the role of innovation in controlling costs center stage. After all, this is what undergirds the Triple Aim that so many health care leaders have embraced as the only realistic alternative to arbitrary cutbacks in health care services and spending. Health care leaders can defend innovation if they have public support. But do they?

Less Research Is Needed

Jun 25, 2012• 5

By Trish Greenhalgh, MD

The most over-used and under-analyzed statement in the academic vocabulary is surely “more research is needed”.

These four words, occasionally justified when they appear as the last sentence in a Masters dissertation, are as often to be found as the coda for a mega-trial that consumed the lion’s share of a national research budget, or that of a Cochrane review which began with dozens or even hundreds of primary studies and progressively excluded most of them on the grounds that they were “methodologically flawed”.

Yet however large the trial or however comprehensive the review, the answer always seems to lie just around the next empirical corner.

With due respect to all those who have used “more research is needed” to sum up months or years of their own work on a topic, this ultimate academic cliché is usually an indicator that serious scholarly thinking on the topic has ceased. It is almost never the only logical conclusion that can be drawn from a set of negative, ambiguous, incomplete or contradictory data.

Recall the classic cartoon sketch from your childhood. Kitty-cat, who seeks to trap little bird Tweety Pie, tries to fly through the air. After a pregnant mid-air pause reflecting the cartoon laws of physics, he falls to the ground and lies with eyes askew and stars circling round his silly head, to the evident amusement of his prey. But next frame, we see Kitty-cat launching himself into the air from an even greater height. “More attempts at flight are needed”, he implicitly concludes.

Zen and the Art of Not Thinking Magically

Jun 25, 2012• 7

By Rob Lamberts, MD

Don’t assume anything.

Assumptions can kill.

Assuming something regarding your own health care can cost you money, cause you pain, and yes, even kill you. Here’s my list of potentially harmful assumptions:

1. No news is good news

If you have a test done and don’t hear anything about the result, do not assume it is fine. This assumption kills people. I have too many patients with too much information flying at me every day for me to catch every important detail. Sometimes things are missed, but sometimes the results don’t come to our office. We have trained our patients to expect an email or letter with their results within a certain amount of time, so they sometimes call when the test results don’t come in. I tell them to do so in the clinical summary sheet I hand out at the end of each visit, but the assumption remains.